Cabana v. Newfoundland and Labrador, 2014 NLCA 34 (CanLII)

Listing Details

This case was heard in the Supreme Court of Newfoundland and Labrador (Court of Appeal).

Mr. Cabana initiated legal proceedings on the grounds that the development of the Lower Churchill River hydro-electric project was unlawful, as the Province of Newfoundland and Labrador had failed to hold a public referendum before approving the project, and had also put the financial wellbeing of the public at risk, and in doing both had violated the Canadian Charter of Rights and Freedoms.

In the midst of a hearing that was being held to determine whether the Court should grant an interim declaration that work on the Lower Churchill River development should stop, Mr. Cabana brought a recusal application, arguing that the sitting Judge should recuse herself from hearing the matter. After considering the evidence put forward by Mr. Cabana, the Judge held that she should not recuse herself, as informed, reasonable, and right-minded persons would not conclude that there was a reasonable apprehension of bias on her part.

Mr. Cabana appealed to the Newfoundland and Labrador Court of Appeal, which held that the Trial Division Judge had been correct to conclude that informed, reasonable, and right-minded persons would not find a reasonable apprehension of bias on her part based on Mr. Cabana’s evidence. However, the Court held that the Judge’s conduct during the hearing could give rise to a reasonable apprehension of bias, as the Judge had been intemperate when assessing the evidence that Mr. Cabana had brought against her. For this reason, the Court set aside the Judge’s subsequent decision on the merits of Mr. Cabana’s application for an interim declaration, and it disqualified the Judge from hearing or dealing with any future litigation involving Mr. Cabana.